A person’s documented wishes about what happens to their estate after death is often referred to as a last will and testament. A person who dies without making a valid will is therefore said to have died ‘intestate’. In that situation, there are legal rules setting out a strict hierarchy of family members who can inherit the estate meaning, the remaining property that has not passed over to others automatically on a person’s death. These are known as the Intestacy Rules.
The Order of Beneficiaries
The rules on who benefits from the estate in an intestacy are set out in the Administration of Estates Act 1925. This identifies an order of priority for assessing the class of persons with an entitlement to the estate. Where there is no living person in a particular class of relative, then entitlement passes to the next in line, and so on.
Where a spouse survives the deceased
In cases where there is a surviving spouse but no children, the spouse is entitled to benefit from the whole estate.
Where there is a surviving spouse and children, the spouse is entitled to the personal effects of the deceased (excluding money) and a statutory legacy, currently set at £270,000, including interest from the date of death. The remaining estate, if any, is then split equally, with half going to the spouse and half being shared between however many surviving children there are. The purpose of the rules is to ensure spouses are provided for, balanced with the expectations of any children.
A spouse is not entitled to benefit from the estate unless they survive the deceased by 28-days. If the spouse dies within that time, the estate passes to the next class of beneficiary, for whom there is no survivorship period.
Where there is no spouse
Where there is no living spouse, the children of the deceased are entitled to the estate. This includes legitimate, illegitimate or legitimated children, as well as children adopted by the deceased.
If there are no surviving children of the deceased, their parents are next to be entitled to benefit, sharing the estate equally if there are two parents living, or in its entirety, if only one is alive.
If the deceased has no living parents, brothers or sisters described as ‘of the whole blood of the deceased’, meaning siblings who share both parents, or their children, are next in order of priority. If a brother or sister has died before the intestate deceased but leaving children of their own, these children then stand to benefit in their place, becoming entitled to whatever share would have been given to their late parent.
If there are no ‘whole blood’ brothers or sisters alive, siblings of ‘half-blood’, meaning with one parent in common with the deceased, or their children, become entitled. The half-blood siblings may be related to the deceased through their mother or father.
In the event, there are no brothers or sisters at all, the grandparents of the deceased receive equal shares of the estate.
Should there be no grandparents living, then aunts or uncles of the whole blood, or their children, share equally in the estate. And so If there are no aunts or uncles of the whole blood, then aunts or uncles of the half-blood, or their children, will be entitled to an equal share of the estate.
Lastly, If there are no aunts or uncles of the half blood or their children, then the Crown, Duchy of Lancashire or Duke of Cornwall, will inherit. The Treasury Solicitor will deal with the estate under the rule of ‘Bona Vacantia’ which means vacant goods and is the name given to ownerless property, which by law passes to the Crown.
Who does not benefit under Intestacy Rules
One of the major issues with not leaving a Will is that certain people ae excluded from the intestacy rules where they are not family members. This includes those cohabiting with the deceased, and it can come as shock to many people in a long term relationship with the deceased that they do not benefit from any provision in the Intestacy Rules. Unless the couple were married or in a civil partnership, then there is no entitlement from the estate.
Cohabitants and other excluded persons such as step-children could make a claim on the estate as dependent persons not provided for, but this can be costly and time consuming often involving complex legal proceedings.
The strict application of the Intestacy Rules can result in a person who might expect to be provided for, having to resort to other means of redress. This may never be what the deceased had intended. This reinforces the good sense of proper estate planning and making a valid Will so that those nearest and dearest are taken care of properly when the time comes. Professional advice from a Solicitor is essential to ensure the Rules do not have to be applied.